Opinion
B293930
04-10-2020
THE PEOPLE, Plaintiff and Respondent, v. KIYANA CAMILLE FOSTER, Defendant and Appellant.
Jamie Lee Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed on April 10, 2020, is modified as follows:
Sentence three of the second full paragraph on page two should read: "As relevant here, the court imposed a $150 restitution fine (§ 1202.4), a $30 court facilities assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8) in counts 2 and 3." Further, footnote two should be deleted entirely from this sentence. This will necessitate a renumbering of the subsequent footnotes in the opinion (i.e., footnote three on page four and footnote four on page five will be renumbered as footnotes two and three, respectively).
In sentence one of the first full paragraph on page three, the word "fine" should be changed to "fines."
The first full paragraph on page four should read: "Foster was ordered to pay a $150 restitution fine (§ 1202.4), a $30 court facilities assessment (Gov. Code, § 70373), and a $40 court operations assessment (§ 1465.8) in counts 2 and 3. Foster argues that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court violated her federal and state right to due process by imposing the $140 in assessments and the $300 in restitution fines without determining her ability to pay. She urges us to remand the cause for the trial court to conduct a hearing to determine her ability to pay the assessments and fines."
In sentence one of the first full paragraph on page five, the word "fine" should be changed to "fines."
In sentence six of the first full paragraph on page five, the word "fee" should be changed to "fees."
There is no change in judgment. /s/_________
MOOR, J. /s/_________
RUBIN, P. J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. BA460455) APPEAL from a judgment of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Affirmed. Jamie Lee Moore, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Senior Assistant Attorney General, Steven D. Matthews, Supervising Deputy Attorney General, Michael J. Wise, Deputy Attorney General, for Plaintiff and Respondent.
____________________
The jury found defendant and appellant Kiyana Camille Foster guilty of resisting, obstructing or delaying a peace officer (Pen. Code, § 148, subd. (a) [count 2]), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a) [count 3]), and driving with a blood alcohol level of 0.08 percent or greater (Veh. Code, § 23152, subd. (b) [count 4]).
All further references are to the Penal Code unless otherwise indicated.
Foster was sentenced to 14 days in county jail, 45 days of community labor, and 3 years summary probation. She was awarded seven days of actual custody credit and seven days of good time credit. As relevant here, the court imposed a $300 restitution fine (§ 1202.4), a $30 court facilities assessment (Gov. Code, § 70373) in counts 2 and 3, and a $40 court operations assessment (§ 1465.8) in counts 2 and 3.
"In every case where a person is convicted of a crime, the court shall impose a separate and additional restitution fine, unless it finds compelling and extraordinary reasons for not doing so and states those reasons on the record. [¶] (1) The restitution fine shall be set at the discretion of the court and commensurate with the seriousness of the offense. If the person is convicted of a felony, the fine shall not be less than three hundred dollars ($300) and not more than ten thousand dollars ($10,000). . . . [¶] (2) In setting a felony restitution fine, the court may determine the amount of the fine as the product of the minimum fine pursuant to paragraph (1) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted." (§ 1202.4, subd. (b).) Although the court stated that it imposed restitution fines of $150 each in counts 2 and 3, we understand it to have calculated a single fine of $300, using the formula set forth in section 1202.4, subdivision (b).
On appeal, Foster contends that the trial court violated her constitutional rights by imposing the court facilities and court operations assessments and the restitution fine. She also asks this court to independently review the transcript from her in camera hearing pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), to determine whether all discoverable material was turned over to her.
The People do not object to independent review of the Pitchess hearing, but contest Foster's contention that she is entitled to an ability to pay hearing.
We affirm the trial court's judgment.
DISCUSSION
We omit a summary of the facts underlying Foster's convictions because it is not necessary for us to discuss the facts in order to address the issues she raises on appeal.
Ability to Pay
Foster was ordered to pay a $300 restitution fine (§ 1202.4), a $30 court facilities assessment (Gov. Code, § 70373) in counts 2 and 3, and a $40 court operations assessment (§ 1465.8) in counts 2 and 3. Foster argues that, under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), the trial court violated her federal and state right to due process by imposing the $140 in assessments and the $300 restitution fine without determining her ability to pay. She urges us to remand the cause for the trial court to conduct a hearing to determine her ability to pay the assessments and fine.
In Dueñas, a homeless, jobless mother of two children, who subsisted on public aid while suffering from cerebral palsy, appealed fines imposed against her despite the trial court's finding that she could not pay them. (Dueñas, supra, 30 Cal.App.5th at pp. 1160-1161.) Dueñas was caught in a longstanding cycle of poverty that had been exacerbated by fines she accrued by driving with a suspended license. Dueñas had repeatedly served time in jail in lieu of paying fines because of her inability to pay, and had suffered other severe adverse consequences due to nothing more than her own impoverishment. (Ibid.)
In contrast to Dueñas, at the sentencing hearing in this case, Foster did not object to the above assessments or fine, nor did she alert the court to any issues relating to her ability to pay. The record contains limited information about Foster's financial circumstances. At the time of sentencing, Foster was 37 years old, employed, and "in the process as [sic] being hired" by a well-known shipping company. In fact, the People's sentencing recommendation and the sentence the trial court imposed were fashioned to avoid any disruption in Foster's employment. There was no other information about Foster's financial assets or liabilities. There is no evidence indicating that Foster will be subject to additional penalties based upon her inability to pay the assessments and fee. The additional punishment that Dueñas faced on the basis of her poverty formed the entire basis for the court's opinion in that case, whereas Foster has not been penalized as a result of poverty or even demonstrated a potential of future penalization due to impoverishment. Because Foster's case lacks the hallmarks that defined Dueñas, we decline to apply its reasoning to the facts before us.
The People argue defendant forfeited her Dueñas argument on appeal by failing to assert her inability to pay in the trial court. The People also contend Dueñas employed the wrong analytic framework. We need not address these issues as we conclude the facts of Foster's case fail to invoke the principles set forth in Dueñas. --------
Pitchess Hearing
Prior to trial, the trial court granted Foster's Pitchess motion, which sought discovery of the personnel files of Los Angeles Police Officer Daniel Steinberg concerning excessive use of force. The court held an in-camera hearing regarding discoverable material and determined that there was no discoverable information.
A criminal defendant is entitled to the discovery of confidential police officer personnel records if the information contained therein is relevant to her ability to defend against the charge. (Pitchess, supra, 11 Cal.3d at pp. 537-538.) To obtain such records, the defendant must submit an affidavit showing good cause for the discovery. (Evid. Code, § 1043, subd. (b)(3).) A showing of good cause requires a defendant seeking Pitchess discovery "to establish . . . a logical link between [a proposed defense] and the pending charge" and "to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1021.) Discoverable information is "limited to instances of officer misconduct related to the misconduct asserted by the defendant." (Ibid.; see California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021, italics omitted ["[D]ocumentation of past officer misconduct which is similar to the misconduct alleged by defendant in the pending litigation is relevant and therefore subject to discovery"].)
Under People v. Mooc (2001) 26 Cal.4th 1216, at pages 1229 through 1232, upon a request from a defendant, an appellate court may review the sealed transcript of a trial court's in camera Pitchess hearing to determine whether the trial court disclosed all relevant documents. A trial court's ruling on such a motion is reviewed for abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)
In response to Foster's request, we reviewed independently the sealed transcript of the trial court's in camera hearing on her Pitchess motion. We conclude that the trial court did not abuse its discretion.
DISPOSITION
We affirm the trial court's judgment.
MOOR., J.
I concur:
RUBIN, P. J. BAKER, J., Concurring
I agree the judgment should be affirmed. The majority correctly resolves the Pitchess v. Superior Court (1974) 11 Cal.3d 531 issue. I do not reach the merits of defendant Kiyana Foster's People v. Dueñas (2019) 30 Cal.App.5th 1157 argument because it was forfeited by the absence of an ability to pay objection at sentencing. (People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154-1155.)
BAKER, J.